Nadelmann, Ethan A.

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Notre Dame Journal of Law, Ethics & Public PolicyVolume 5Issue 3 Symposium on Drugs & Society Article 10February 2014Nadelmann's ResponseEthan A. NadelmannFollow this and additional works at: http://scholarship.law.nd.edu/ndjleppThis Article is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has beenaccepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information,please contact lawdr@nd.edu.Recommended CitationEthan A. Nadelmann, Nadelmann's Response, 5 Notre Dame J.L. Ethics & Pub. Pol'y 817 (1991).Available at: http://scholarship.law.nd.edu/ndjlepp/vol5/iss3/10NADELMANN'S RESPONSEETHAN A. NADELMANNJohn Burnham is almost certainly correct in asserting thatprohibition did contribute to a decline in alcohol consumption,particularly among lower income Americans.' Yet we must bewary of thereby assuming that prohibition was, on balance, asuccess. The most dramatic decline in alcohol consumption inthe United States occurred not during the period during whichthe Eighteenth Amendment was in effect (1920-1933) butbetween 1916 and 1922. The enactment of prohibition stat-utes by many states during this period as well as the govern-ment's closing of breweries and distilleries during the FirstWorld War undoubtedly contributed to this decline. But it isimportant to recognize that factors other than criminal lawsalso played a significant, perhaps more important, role. Thetemperance movement was highly active and successful duringthis time in disseminating information about the dangers ofalcohol and in popularizing negative attitudes toward drinking.The patriotic fervor aroused by the war contributed to a spiritof self-sacrifice and alcohol temperance derived from the needto conserve grain and "an atmosphere of hostility toward allthings German, not the least of which was beer."' 2 In short, agreat variety of factors coalesced during this brief period tosubstantially reduce the extent of alcohol consumption andalcohol-related ills.3Further proof of the importance of factors other than pro-hibition statutes is provided by the very evidence on whichBurnham relies. He notes that the admission rate for alcoholpsychoses to New York state hospitals declined from 10% in1909-1912 to 1.9% in 1920.' Yet this decline occurred largelyprior to national prohibition and in a state that had not enactedits own prohibition law. Similarly, alcoholic admissions toBellevue Hospital in New York City dropped from 4.99 (per1,000 New Yorkers age 25-64) in the peak year of 1910 to 2.851. Burnham, New Perspectives on the Prohibition "Experiment" of the 1920s, 2J. Soc. HIST. 51 (1968).2. D. KYVIG, REPEALING NATIONAL PROHIBITION 10 (1979).3. F. ALLEN, ONLY YESTERDAY: AN INFORMAL HISTORY OF THE 1920s(1931).4. Burnham, supra note 1.818 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 5in 1919, then dropped dramatically to 0.73 in 1920 and 0.81 in1921, and then rose steadily to 2.44 in 1933.1 First admissionsfor alcohol psychoses to New York State mental hospitals evi-denced similar trends.6 Another study on which Burnhamrelies indicates that the estimated rate of chronic alcoholism inthe United States dropped from 1,248 in 1910 and 1,202 in1915 to 681 in 1920 and remained at approximately that levelthroughout Prohibition. 7At best, one can argue that national prohibition was effec-tive during its first years, when temperance norms remainedstrong and illicit sources of production had not yet been firmlyestablished. By almost all accounts, alcohol consumption washigher in the middle and end of national prohibition than it wasat the beginning-despite the substantially greater resourcesdevoted to enforcement during the later years. The decline inalcohol consumption between roughly 1916 and 1922,. muchlike the dramatic decline in cigarette consumption in recentyears, had less to do with prohibition laws than with changingnorms and the imposition of non-criminal justice measures.Burnham's contention that prohibition was largely inci-dental to crime is also difficult to sustain. Between 1923 and1933, the proportion of the U.S. population incarcerated infederal and state prisons and reformatories increased approxi-mately 50% (from 73 to 110 per 100,000 total population).'By contrast, the proportion had remained constant between1910 and 1923, the years during which alcohol consumptiondeclined most dramatically.9 Similarly, the proportion of thepopulation imprisoned in jails increased 61% between 1923and 1933 (from 26 to 42 per 100,000 population) after appar-ently declining significantly from 1910."0 The number andproportion of inmates incarcerated in federal prisons for liquorlaw violations increased dramatically from 12% of the 5,426committed in 1909-14 to 43.4% of the 47,322 committed in1929-34." Although these figures do not prove that alcohol5. Jolliffe, The Alcoholic Admissions to Bellevue Hospital, 83 SCIENCE 306(1936).6. Landis & Cushman, The Relation of National Prohibition ot the Incidence ofMental Disease, 5 Q.J. STUDIES ON ALCOHOL 527 (1945).7. Jellinek, Recent Trends in Alcoholism and Alcohol Consumption, 8 Q. J.STUDIES ON ALCOHOL 1 (1947).8. U.S. DEPT. OF JUSTICE, BUREAU OF JUSTICE STATISTICS, HISTORICALCORRECTIONS STATISTICS IN THE UNITED STATES, 1850-1984 34 (1986).9. Id.10. Id. at 78.11. Id. at 153.NADELMANN'S RESPONSEprohibition caused higher rates of crime, they do suggest acausal relationship.More importantly', alcohol prohibition clearly did add acriminal dimension to most aspects of alcohol production anddistribution. Even if most participants in the alcohol marketwere never arrested, the fact remains that tens of millions ofAmericans were, directly or indirectly, participants in an illicitactivity and typically perceived themselves as such. Criminalenterprises reaped billions of dollars in revenues, paid protec-tion money to many thousands of government officials, andengaged in violent interactions with one another. The resultsof Prohibition, Frederick Lewis Allen wrote, "were the bootleg-ger, the speakeasy, and a spirit of deliberate revolt which inmany communities made drinking 'the thing to do'."' 2Perhaps the most telling indictment of the U.S. experimentwith alcohol prohibition is provided by the British experiencewith alcohol control during a similar period. Whereas in theUnited States the death rate from cirrhosis of the liver droppedfrom 13-15 per 100,000 population in 1910-1914 to 7 duringthe prohibition years and then climbed back to pre-1914 levelsby the 1960s, in Britain the death rate from cirrhosis of theliver dropped from 10 in 1914 to 5 in 1920 and then graduallydeclined to a low of 2 in the 1940s before rising to a rate of 3by 1963.'" Other indicators of alcohol abuse dropped by simi-lar magnitudes. 4 "This remarkable achievement occurred,"Milton Terris has written, "despite the fact that there was noprohibition in the United Kingdom." Britain's "wartime meas-ures included a sharp curtailment in the amount of alcoholavailable for consumption, drastic restriction of the hours ofsale, and marked increases in taxes on alcoholic beverages.With the end of the war, the limitations on the available quan-tity of alcohol were removed, but the hours of sale wereextended to only half the pre-war time of opening, while taxa-tion was increased even further."' 5Britain not only reduced the negative consequences ofalcohol consumption more effectively than did the UnitedStates, but it did so in a manner that raised substantial govern-12. F.L. ALLEN, supra note 3, at 82.13. Terris, Epidemiology of Cirrhosis of the Liver: National Mortality Data, 57AM. J. Punuc HEALTH 2085 (1967).14. Saunders, The Case for Controlling Alcohol Consumption, in THE MISUSEOF ALCOHOL 214-31 (N. Heather, I. Robertson & P. Davies, eds. 1985); A.SHADWELL, DRINK IN 1914-1922: A LESSON IN CONTROL (1923); H. CARTER,THE CONTROL OF THE DRINK TRADE IN BRITAIN (1919).15. Terris, supra note 13, at 2085.1991)820 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY (Vol. 5ment revenues; by contrast, the United States governmentspent substantial revenues attempting to enforce its prohibi-tion laws and sacrificed far greater revenues into the hands ofcriminal enterprises. The British experience strongly indicatesthat the national prohibition of alcohol in the United Stateswas, on balance, not successful. It also suggests that moreeffective control measures after the repeal of prohibition mighthave prevented the return to high levels of alcohol abuse.Our conclusions with respect to the high points of bothalcohol control efforts, however, must be tempered by the rec-ognition that they coincided with (and possibly contributed to)dramatic increases in the consumption of another highly addic-tive psychoactive substance. Per capita annual consumption ofsmall cigarettes in the United States rose from 34.68 in 1900 to85.49 in 1910, jumped to 470.85 in 1920, doubled again to976.91 in 1930, and continued to rise during the followingthree decades.'"Siassi's and Fozouni's conclusions regarding the lessons ofIran's experience with an opium maintenance program are ofquestionable relevance to my analysis. As they in fact note,Iran's program was neither well conceived nor well maintained.Once it was curtailed, "other illicit sources of supply... at oncereplaced the sale from the 'legal' sources.""17 Moreover, othercountries that did not experiment with such maintenance plansalso experienced dramatic increases in opiate use; indeed, theenactment of anti-opium laws in many Asian countries in whichopium use was traditional-including Hong Kong, Thailand,Laos and Iran-is believed to have played a strong role in stim-ulating the creation of domestic heroin "industries" and sub-stantial increases in heroin use.' 8 Finally, a central criterion bywhich any maintenance program should be measured is itsimpact on drug users who would otherwise rely entirely on theblack market; this issue is not addressed by Siassi and Fozouni.Nahas is correct as he contends that interdiction measurescan curtail consumption in some cases. He neglects, however,to emphasize that the effectiveness of such measures typicallydepends upon the ruthlessness of the regime and the homoge-16. R.J. TROYER & G.E. MARKLE, CIGARETTES: THE BATTLE OVERSMOKING 34 (1983).17. Siassi & Fozouni, Dilemmas of Iran's Opium Maintenance Program: AnAction Research for Evaluating Goal Conflicts and Policy Changes, 15 INT'L J.ADDICT. 1127 (1980).18. Westermeyer, The Pro-Heroin Effects of Anti-Opium Laws in Asia, 33ARCHIVES GEN. PSYCHIATRY 1135 (1976); Ibrahim, Iran Puts Addicts in its LaborCamps, N.Y. Times, July 22, 1989, at 3.NADELMANN'S RESPONSEneity of the society;. The Japanese and Swedish successes incurtailing the illicit consumption of amphetamines and heroinowed much to the extraordinary homogeneity of their societies;and even the account of Japan's success must be tempered byrecognition that abuse of inhalants among youth has repre-sented a serious problem since 1967. " Singapore's successreflects the capacity of a quasi-totalitarian regime to employhighly repressive measures in a relatively tiny geographicalarea.2° Similarly, China's opium problem was not substantiallycurtailed until the communist regime implemented highlyrepressive measures after 1949.In the United States, opiate addiction was declining beforethe Harrison Act was enacted;"' indeed the Pure Food andDrug Act of 1906, which required only that patent medicinemanufacturers list the ingredients, reportedly reduced patentmedicine sales by a third.22 The low levels of cocaine and opi-ate addiction in the United States and Europe between 1930and 1960 were a consequence of many factors other than drugprohibition. The increases in illicit drug consumption in muchof Europe and the United States thereafter did not, in mostcases, coincide with any lessening of the criminal penaltiesattached to drug offenses.The association of "legalization of use and possession ofcannabis, cocaine, and heroin in Italy and Spain... with majorepidemics of the use of these drugs" is largely spurious. Onthe one hand, countries with far stiffer penalties, such as Ger-many, Iran and Malaysia, evidence comparable or higher ratesof use and drug-related ills.2 3 On the other hand, the Nether-lands, which does not apply criminal penalties to mere drugpossession, has lower rates of illicit drug use, new drug users,drug overdose deaths, and drug-related AIDS cases than mostother Western European countries. Illicit drug "overdoses," itmust be stressed, are largely a consequence of the criminaliza-tion, and hence unregulated nature, of the drug supply.19. Suwanwela & Poshyachinda, Drug Abuse in Asia, 38(1 & 2) BULL. ONNARCOTICS 41 (1986); Kumagai, Drug Abuse and Counter-Measures in Japan, 29MED. J. MALAYSIA 136 (1974).20. McGlothlin, The Singapore Heroin Control Programme, 32(1) BULL. ONNARCOTICS 1 (1980).21. D. COURTWRIGHT, DARK PARADISE: OPIATE ADDICTION IN AMERICABEFORE 1940 (1982).22. D. MUSTO, THE AMERICAN DISEASE: ORIGINS OF NARCOTICCONTROL (1987).23. Ibrahim, supra note 18, at 3; Richardson, Asians Plan Crackdown onDrug Trade, Int'l Herald Tribune, September 22, 1989 at 5; Droge, Als Hdttestdu eine Rakete im Kopf, DER SPIEGEL, November 21, 1988, at 142-50.1991]822 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 5Even as the governments of Italy and Spain are nowattempting to enact tougher anti-drug measures, support foralternatives to prohibition is growing throughout much ofEurope.24 In Italy, a Radical Party member was elected inApril 1989 to the European Parliament on a drug legalizationplank. In Germany, Mayor Henning Voscherau of Hamburgand the former federal health minister, Rita Suessmuth, areamong those insisting that the drug laws be reexamined. 25 InSpain, the movement to legalize drugs is attracting supportfrom diverse sectors of society. 2 6 In Zurich, officials haveestablished a legally sanctioned "free zone for drug addicts."127In the United States, growing numbers of prominent officialsare speaking out in favor of alternatives to drug prohibition.28These trends seem likely to continue.24. Dickey,.A Common Market of Crack?, NEWSWEEK, September 18, 1989,at 37.25. Mildefirstichtige, Hdrtegegen Dealer, DER SPIEGEL, November 7, 1988at 22-24; Voscherau, Siekb'nnen mirja ein en Kranz Schicken, DER SPIEGEL, July17, 1989 at 27-30.26. Pizano, El Movimiento para Legalizar la Druga Crece en Espdna, CAMBIO16, October 2, 1989 at 12-17.27. Cody, In a Zurich Park, Addicts Find a Haven, Int'l Herald Tribune,August 30, 1989 at 1.28. Shultz, Schultz on Drug Legalization, Wall St. J., October 27, 1989, atA17; Moore, Dissenters in the Drug War, NAT'LJ., November 4, 1989, at 2692-95; D. Lazare, N.Y. Observer, November 6, 1989, at 1.

Nadelmann\u27s Response

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Nadelmann\u27s Response

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